Employment Law Bulletin July 2017

Tuesday 25 July 2017

Disability Discrimination

Under s.15 of the Equality Act 2010, it is discrimination for an employer to treat a disabled employee unfavourably because of ‘something’ arising in consequence of his or her disability – unless that unfavourable treatment is justified as a proportionate means of achieving a legitimate aim. For example, an employee who is dismissed because of his or her absence can claim discrimination on the basis that the absence is something that arises in consequence of his or her disability.

In Charlesworth v Dransfields Engineering Services Ltd the employee was a branch manager who was absent for a period of three months while being treated for cancer (which is deemed to be a disability under the Equality Act). While he was absent the employer discovered that the business could be restructured so as to delete the post of branch manager and save costs. When Mr Charlesworth returned to work, therefore, he was told that his post was potentially redundant and, after a period of consultation and consideration of alternatives, he was dismissed.

The Tribunal found that the dismissal was fair and rejected his claim for disability discrimination. While there was no doubt that Mr Charlesworth’s absence from work had provided the employer with the opportunity to assess his role and discover that the business could be run just as effectively without him, that did not mean that he was dismissed ‘because of’ his absence.

The EAT agreed. To establish discrimination under s.15 it was not enough to show that the treatment was influenced by something that arose from the disability. The ‘something’ in question had to be an operative cause of the treatment. Here, the Tribunal had found that the reason for the dismissal was a genuine redundancy. It was true that the employer had identified the possibility of such a redundancy when the employee was absent from work, but the Tribunal had found that the employer could easily have arrived at the same conclusion by other means. The fact that the employer believed that the business could be run without a branch manager was not ‘something’ which arose in consequence of the employee’s disability. The appeal was dismissed.